1995 PLP 481 (CLC)

Date of hearing: 24th November, 1994. This petition under section 115, C.P.C. calls in question the judgment and decree of the learned Additional District Judge, Lahore dated 17‑7‑1993 affirming the order of the Civil Judge, Lahore dated 6‑12‑1992 rejecting the plaint of a suit filed by the petitioners.

2. The background in which this dispute arises is that respondent No. 1 instituted a suit for declaration to the effect that the sale‑deed registered on 15‑10‑1980 was illegal, unlawful, void and a nullity in the, eye of law. The petitioners appeared in the said suit and contested it. However, a compromise was arrived at between the parties in terms whereof a compromise deed was drawn up which was presented before the Civil Court on 9‑9‑1991 which disposed of the suit in terms of the compromise. It appears that subsequently respondent No. 1 applied for execution of the decree out that application was refused on the ground that no executable decree had been passed in the suit. Respondent No. 1 thereupon approached the Sub‑Registrar who on the basis of the consent order dated 9‑9‑1991 cancelled the sale‑deed registered on 15‑10‑1980.

3. It was thereupon that the petitioners had filed the suit out of which this revision has arisen. In that suit, a declaration that the action of the Sub Registrar in cancelling the sale‑deed dated 15‑10‑1980 was illegal, unlawful, void and without jurisdiction inasmuch as he had no power under the relevant law to proceed to cancel the duly registered deed merely on the basis of a compromise, was claimed.

4. The respondents instead of filing the written statement moved an application under Order 7, rule 11 of the C.P.C. objecting to the maintainability of the suit and the jurisdiction of the Court to entertain it on the ground that the object in filing the suit was to have the compromise entered into between the parties in the earlier suit, set aside. This application was rejected by the trial Court on 6‑12‑1992. Having remained unsuccessful in appeal before the Additional District Judge, the petitioners have filed this petition.

5. Learned counsel for the petitioners has reiterated that the second suit filed by the petitioners was based on the plea that the Sub‑Registrar had acted illegally, unlawfully and without jurisdiction in cancelling the registered sale‑deed. He argued that as cause of action in the second suit had arisen after the decision of the first suit, the trial Court acted illegally in rejecting the plaint.

6. However, from the facts stated by the learned counsel for the petitioners himself, it is evident that the Sub‑Registrar had cancelled the sale- deed on the basis of the compromise arrived at between the parties which was duly sanctified by the Court and an order in disposing of the suit in terms of the compromise was passed specifically in which it was inter alia, observed that the compromise Exh. C‑1, shall form part of the order. Although that decision may not amount to an executable decree but the fact remains that order dated 9‑9‑1991 was binding on the parties till such time it was not set aside by a Court of competent jurisdiction.

7. Faced with this situation, learned counsel for the petitioners has argued that the compromise was procured from the petitioners through fraud and misrepresentation and, therefore, order based thereupon also suffers from that vice. He further submitted that the petitioners did not feel the necessity of challenging the order dated 9‑9‑1991 as the trial Court had dismissed the execution application and the grievance of the petitioners only arose when the sale‑deed was cancelled on 11‑1‑1992.

8. Even if that be so, this plea hardly advanced the case of the petitioners inasmuch as the real object of the petitioners is to have the order of the Civil Court dated 9‑9‑1991 sanctifying the compromise between the parties, set aside on the ground of fraud and misrepresentation. No separate suit could be filed in this behalf and the remedy, if any, of the petitioners was by approaching the same Court through an application under section 12(2) of the C.P.C.

9. It is correct that the Executing Court had held that the order passed by the Civil Court of disposal of the suit in terms of the compromise did not amount to executable decree but for the purpose of maintainability of the second suit, this fact had no relevance inasmuch as under section 12(2), C.P.C. not only a decree but also an order or a judgment can be challenged. It may be that in the suit filed by the petitioners there was no direct challenge to the order dated 9‑9‑1991 but the object in filing the suit was clearly to avoid order dated 9‑9‑1991 and the compromise approved by the Court. That being so, the suit was clearly barred by section 12(2), C.P.C. In view of what has been stated above, this petition is dismissed leaving the parties to bear their own costs. A.A./M‑1903/L Revision dismissed.